Developments in Abortion, Autonomy, and Access:
As 2024 comes to a close and we prepare for the new year, we are reflecting on everything that happened this year to shape the reproductive rights landscape at the local, state, and federal levels. This year, we saw litigation in federal and state courts over the constitutionality of abortion bans and the scope of state law exceptions to those bans. We also reported on arguments before the U.S. Supreme Court about access to medication abortion and emergency abortion care. During the November election, 7 states passed abortion rights ballot measures, expanding access in their states, while 3 states' measures failed to pass. States have passed highly restrictive, novel legislation that further limits care by creating the crime of “abortion trafficking” and re-classifying mifepristone and misoprostol as controlled substances. Meanwhile, access-protective states have shored up their shield laws and passed bills expanding access to care and reinforcing privacy protections.
In the new year, L4GG remains prepared and committed to fighting for safe, accessible, and equitable health care for all – a fight that we thank you for joining us in. But before we turn the page to 2024, we have some final important reproductive health updates to report on. Please read on to the end for the news that you need to know, and we will see you in 2025.
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This Week’s Must Read:
This week’s must-read comes from the Marshall Project’s investigation into a pattern of hospitals reporting pregnant patients for positive drug tests after administering standard medications for pain, anxiety, or blood pressure management during childbirth. The report details stories of patients who temporarily lost custody of their children after being given drugs like morphine or fentanyl in their epidurals and subsequently reported for positive drug tests. In one story, an Oklahoma woman was reported for testing positive for methamphetamine, and her children were removed from her custody and placed in foster care–only for a confirmation test to prove that the positive result was caused by heartburn medication prescribed in the hospital.
At a time of increasing pregnancy criminalization and surveillance, stories like these highlight the urgency of preserving patient privacy and separating the therapeutic patient-clinician relationship from the criminal justice system.
Legislation & Litigation:
Texas Challenges New York Shield Law:
In a landmark piece of litigation, Texas Attorney General Ken Paxton has filed a civil lawsuit against a New York doctor for prescribing medication abortion pills to a woman in Texas. The lawsuit seeks up to $250,000 in damages and marks the first open challenge to abortion rights “shield laws.” These laws, enacted by about 26 states post-Dobbs, seek to protect providers from civil, criminal, and professional consequences related to the provision of reproductive or gender-affirming health care. New York's law is one of several that not only protects care delivered in the state but also attempts to shield providers who send pills into ban states.
The use of telehealth for medication abortion has been a lifeline for pregnant people in states with restrictions in place, and regardless of its final holding, this lawsuit will have a chilling effect on would-be prescribers. It will also test the strength of shield laws in court for the first time, pitting New York’s protections against Texas’s restrictions. It is unclear what the outcome will be, but Texas will argue that providers not licensed in Texas are facilitating illegal abortions within its borders, while New York will argue that its state laws permit the provision of that care and block Texas from imposing liability. If Texas is able to succeed in its own courts, New York will then likely argue that it does not have to enforce that judgment within New York state borders. This case will have a broad impact on shield law development and usage nationwide, and we will continue to report on the story as the litigation advances.
Supreme Court Agrees to Hear Case About Medicaid Funding for Planned Parenthood:
The Supreme Court has agreed to hear a case out of South Carolina challenging Medicaid funding for Planned Parenthood’s non-abortion services. In 2018, South Carolina’s Governor determined that abortion clinics were not qualified Medicaid providers for non-abortion family planning and health care services, including cancer screening, exams, and contraceptive counseling and provision. Planned Parenthood sued, arguing that the state had erred in concluding that it was not a qualified Medicaid provider, and the Fourth Circuit Court of Appeals agreed. The Court will hear the narrow question of whether the Medicaid Act’s any-qualified provider provision confers a private right upon a Medicaid beneficiary to choose a specific provider. The outcome of this case will have significant consequences for decades-long efforts to defund Planned Parenthood at the state level.
Oral Arguments Heard in Idaho Case About Emergency Abortion:
Earlier this year, the U.S. Supreme Court threw out a challenge to Idaho’s abortion law under the Emergency Medical Treatment and Active Labor Act (EMTALA), sending it back to the lower courts. The case centers around questions of federal preemption, as Idaho’s abortion ban only permits abortion to save the life of the patient, and EMTALA federally obligates hospitals receiving Medicare funding to provide stabilizing care to patients to preserve their life or their health. Sometimes, that care is an emergency abortion. At this time, Idaho’s law is blocked for cases of emergency abortions under EMTALA. \
Last week, the Ninth Circuit Court of Appeals, the federal appellate court over Idaho, heard arguments in the case. The panel appeared divided, with several of the judges seeming skeptical of the state’s argument that it could supplant federal law with a state abortion ban and others asking questions indicating interest in the idea that EMTALA includes a fetal personhood mandate that creates an equal duty of care to both the patient and the fetus or embryo. Zooming out, it is important to remember that this case is not about overturning Idaho’s abortion ban and restoring access in the state. It is about Idaho’s right to defy federal law in order to deny pregnant patients abortions in narrow circumstances in which the patient's health, but not their life, is in jeopardy.
It is not clear when the Ninth Circuit will issue its ruling; however, it is possible that the incoming Trump Administration will drop the lawsuit altogether. In that case, providers, medical groups, or groups of patients could attempt to keep the litigation alive.
Idaho Abortion Trafficking Ban Partially Reinstated:
Idaho’s abortion trafficking law, which criminalizes assisting a minor out of state to obtain an abortion without their parent's consent, has been partially reinstated by the Ninth Circuit Court of Appeals. The law, which was passed in 2023, was blocked while the courts considered its constitutionality. Specifically. The law imposes a prison sentence of 2-5 years on individuals who “recruit,” “harbor,” or “transport” a minor out of state with the intention of helping them obtain an abortion. In its Opinion, the Court found that the provisions relating to ‘harboring’ or ‘transporting’ a minor is likely constitutional and can go into effect, but blocked the prohibition on ‘recruitment,” holding that it swept too broadly and could apply to First Amendment-protected speech including legal advice, the provision of information and mere encouragement of or support.
Tennessee has passed a nearly identical abortion trafficking law that is currently blocked by litigation, and other states have introduced or are considering such legislation. The Ninth Circuit’s ruling will likely inform the crafting of future restrictions in other states and will almost certainly create a chilling effect on those who might otherwise help family members or friends to obtain lawful out-of-state abortions.
Missouri Abortion Rights Amendment Held up in Court:
In the November election, Missouri became the first state to successfully vote to overturn a total abortion ban using the ballot initiative process. The day after the election, Planned Parenthood filed a lawsuit challenging the existing ban and related restrictions, and in a subsequent hearing, it asked the court to freeze the ban so that care could resume. The judge has not yet issued a ruling, leaving abortion functionally unavailable in the state for the time being. Missouri Attorney General Andrew Bailey has stated that the new amendment, which legalizes abortion until viability, renders the total ban unconstitutional, but he argues that other medically unnecessary restrictions, such as waiting periods, should remain in place. Meanwhile, the Missouri legislature has introduced a slate of bills that would restrict access to abortion, including one that asks voters to define life as beginning at conception. Lawmakers are also attempting to raise the threshold for the future passage of citizen-led ballot measures, presumably in response to the passage of the abortion rights measure.
Arizona Advocates File Lawsuit to Remove 15-week Ban:
Abortion is now available in Arizona until fetal viability following the passage of the state’s abortion rights ballot measure. Although providers have resumed providing abortions until viability, the amendment remains subject to litigation, as advocates argue that it renders the previous 15-week ban unconstitutional. This process of unwinding existing bans will have to play out in every state that has passed an amendment expanding care beyond what was previously statutorily permitted.
Supreme Court Hears Oral Arguments About Gender-Affirming Care Bans:
On Wednesday, December 4th, the U.S. Supreme Court heard oral arguments in U.S. v. Skrmetti, a case challenging the constitutionality of Tennessee’s ban on gender-affirming care for minors. The Biden Administration and the plaintiffs argue that the ban violates the Equal Protection Clause by unconstitutionally discriminating on the basis of sex. 26 states currently have bans on gender-affirming care for minors in place, and the arguments in Skrmetti mark the first time that the high court has taken up the issue. The outcome of the case will not only determine the legality of bans on gender-affirming care but will signify the court’s inclination to further narrow privacy and bodily autonomy rights post-Dobbs.
During arguments, the justices appeared split, with several of the traditionally conservative justices questioning whether the law discriminates on the basis of sex (despite its overt references to biological sex) and appearing skeptical of the well-established science and research supporting gender-affirming care. Other justices, perhaps most notably Justice Ketanji Brown Jackson, peppered the attorney for Tennessee with questions about how a law that facially discriminates on the basis of a person’s biological sex cannot be considered a sex-based classification that triggers heightened scrutiny. The arguments also included lines of questioning about the history of discrimination against the transgender community, primarily interrogated by Justice Barrett. The attorney for Tennessee also argued that any policy disagreement with the bans should be sorted out through the democratic process, prompting Justice Sotomayor to comment that it is difficult for a group that makes up less than 1% of the population to garner the political capital needed to protect their rights through the democratic process.
The case will likely be decided by the summer, and its outcome will have far-reaching implications. Notably, while the Supreme Court mulls over the question of Tennessee’s ban, Montana’s Supreme Court upheld an injunction on its gender-affirming care ban, finding that it is likely unconstitutional and interferes with an individual’s rights “to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider.”
Ohio Attorney General Appeals Ruling Striking State Abortion Ban:
Ohio Attorney General Dave Yost is appealing a decision striking the state’s 6-week abortion ban as unconstitutional in light of Ohioans’ passage of an abortion rights ballot measure last year. Although the 6-week ban was passed in 2019, it only briefly went into effect post-Dobbs, and, by the Attorney General’s own admission, it was invalidated by the abortion rights amendment. Regardless, the State continues to expend resources defending it, arguing that certain restrictions on abortion should remain in place.
Trend & Policy Watch:
South Carolina Legislators Introduce Bill to Punish Abortion with the Death Penalty:
South Carolina legislators have once again introduced a bill that would classify abortion as homicide, subjecting patients who terminate their pregnancies to the possibility of the death penalty. This is not the first time that this legislation has been introduced, and although it is unlikely to pass, it is a critical reminder of what is at stake in this fight. If passed, the bill would not penalize miscarriages; however, that would still mean that individuals under investigation would have to somehow prove the circumstances surrounding their pregnancy loss. Since Dobbs, we have seen countless stories of pregnant patients in emergencies being denied medical care as their providers justifiably fear severe penalties under abortion bans. Thus far, however, states have stopped short of criminalizing the patient themselves–doing so would dangerously chill patients from seeking care for pregnancy complications or loss, endangering their lives and health.
Nebraska Constitutionally Enshrines its Abortion Ban:
Nebraska’s Governor has officially signed proclamations affirming the passage of an amendment enshrining the state’s 12-week abortion ban into the constitution. As a reminder, voters in November had two competing abortion amendments before them – one would have expanded access until viability, while the other enshrined the current 12-week ban, with exceptions for rape, incest, or life of the patient, but no exception for fetal anomalies. The anti-choice measure passed, but questions remain about the impact of misleading tactics employed by anti-choice groups.
Texas Will Not Report on Maternal Deaths for 2021-2024:
The Texas Maternal Mortality Committee has announced that it will not review deaths from 2021 to 2023, stating as justification that it wants to examine the most contemporary cases. This decision faced backlash, as the years in question cover the implementation of the state’s 6-week and total abortion bans and represent the most significant change in reproductive health policy in the state of Texas in decades. Clear data about the impacts of abortion bans on maternal health care is critical for lawmakers, medical personnel, and advocates alike. And the state’s failure to adequately examine the clinical fallout of its bans does a disservice to anyone whose care was impacted by the change in law.
Michigan Proposes Legislation to Protect Reproductive Health Data Privacy:
In response to the incoming administration and increased concern about abortion and pregnancy surveillance, the Michigan legislature is looking to shore up privacy protections for reproductive health data. Governor Whitmer is supporting a bill that would, among other things, require businesses to only use tracked reproductive health data for the service the business or organization provides and inform users of how their data may be used. Signed consumer consent would be required prior to a user’s data being sold. Importantly, the bill would also prohibit the use of location information and ad targeting that could be used to identify individuals visiting reproductive health care clinics. Similar preemptive plans for state-level protections for abortion and health care are underway in several states across the country.
Congress Advances Defense Bill with Anti-Trans Provision:
Congress has passed a version of the National Defense Authorization Act (NDAA) that includes a provision banning TRICARE, the military health program, from covering gender-affirming care for the dependents of service members. With an incoming administration that ran on an anti-trans rights platform, federal restrictions on care are likely to increase in the coming years. The Supreme Court’s ruling in the Skrmetti case, discussed above, will play a significant role in shaping the outcome of future anti-trans legislation.
Ohio Legislature Sends ‘Parents Bill of Rights’ to Governor’s Desk:
The Ohio legislature has passed a so-called ‘parents bill of rights”; it will now go to the governor’s desk, where it is expected to be signed. The law requires schools to notify parents if a student requests to be called by a different pronoun or asks for counseling. It also requires parents to be notified about instruction involving “sexuality content,” which the bill defines as instruction relating to “sexual concepts or gender ideology.” Advocates for LGBTQ+ youth warn that this kind of legislation is dangerous for youth and takes away their ability to go to a trusted adult for support without fear of their safety and privacy being jeopardized.
